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Lisa Marie Clark v. Pnc Financial Services Group

November 14, 2011

LISA MARIE CLARK, PLAINTIFF,
v.
PNC FINANCIAL SERVICES GROUP, DEFENDANT.



The opinion of the court was delivered by: McVerry, J.

MEMORANDUM OPINION AND ORDER

Presently pending before the Court is DEFENDANT‟S MOTION FOR SUMMARY JUDGMENT, with memorandum of law in support, filed by Defendant PNC Financial Services Group. Doc. Nos. 26 and 27. Defendant has also filed an appendix and a separate statement of undisputed material facts in support of its motion for summary judgment (Doc. Nos. 28 and 29) pursuant to Fed.R.Civ.P. 56 and Local Rule 56.1. Plaintiff, proceeding pro se, filed a response in opposition to Defendant‟s motion for summary judgment. Doc. No. 31. The motion is ripe for disposition. For the following reasons, Defendant‟s motion for summary judgment will be granted.

Statement of the Case

A. Procedural History

On March22, 2010, Plaintiff, Lisa Marie Clark, initiated this case with the filing of her motion to proceed in forma pauperis with a copy of her complaint on March 22, 2010, against Defendant, PNC Financial Services Group, Inc. ("PNC").*fn1 Doc. No. 1. Plaintiff‟s motion was granted, and her complaint was deemed filed on March 23, 2010. Doc. No. 2. On October 13, 2010, this Court‟s Memorandum Opinion and Order granted in part and denied in part Defendant‟s motion to dismiss Plaintiff‟s complaint. Doc. No. 12. In response, Plaintiff amended her complaint on October 22, 2010, alleging a claim of discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000a, et seq. based upon her race (African-American). Doc. No. 13, Amended Complaint. Generally speaking, on June 29, 2009, Plaintiff, who was in the employ of the Defendant at the time, was placed on administrative leave with pay pending the results of an investigation into whether she violated Defendant‟s Code of Ethics. Am. Compl. at ¶ 5. Her employment was subsequently terminated by Defendant on July 15, 2009. Am. Compl.at ¶ 7. Plaintiff alleges that her "suspension and termination" were racially motivated, and, as such, violated Title VII. Am. Compl. at ¶ 8. Defendant answered the amended complaint (Doc. No. 14) with a denial of any discrimination, and a period of discovery followed. Upon completion of the period of discovery, Defendant filed its motion for summary judgment.

B. Factual Background

The facts as recounted here are taken from Plaintiff‟s amended complaint (Doc. No. 13), Defendant‟s statement of material facts (Doc. No. 29), the appendix to Defendant‟s motion for summary judgment (Doc. No. 28), and Plaintiff‟s response thereto (Doc. No. 31). The facts and all reasonable inferences are viewed in a light most favorable to Plaintiff, the non-moving party.

1. Plaintiff's employment background with Defendant

Plaintiff began her employment with Defendant on June 24, 2001 as a Financial Services Consultant. In 2003, Plaintiff was transferred to the Channel Services Department of the National Financial Services Center, which was located in the USX Tower at 600 Grant Street in downtown Pittsburgh. Doc. No. 28-1, Deposition transcript of Plaintiff at transcript page 16. Plaintiff‟s primary duties in the Channel Services Department included completing customer account maintenance requests, handling loose mail, and opening and closing accounts. Doc. No. 28-1, Dep. Tr. of Plaintiff at Tr. p. 19. Beginning in 2008, Lead Financial Services Consultant Mark Ray became Plaintiff‟s direct supervisor. Doc. No. 28-1, Dep. Tr. of Plaintiff at Tr. p. 19.

At times, Plaintiff‟s duties required her to work in the Channel Services Department‟s mailroom. Doc. No. 28-1, Dep. Tr. of Plaintiff at Tr. p. 20. Within the mailroom was a United Parcel Service ("UPS") postage machine that PNC employees utilized to prepare packages for shipping items related to Defendant‟s business activities, and to bill for the expense of the shipping. Doc. No. 28-1, Depo. Tr. of Plaintiff at Tr. pp. 20 -- 21. While working in the Channel Services Department, Plaintiff used the UPS machine to send packages to customers on behalf of PNC for bank business. Doc. No. 28-1, Depo. Tr. of Plaintiff at Tr. p. 21.

2. PNC's Code of Ethics

Employees of Defendant are expected to follow and comply with PNC‟s Code of Business Conduct and Ethics and Employee Conduct Policies ("Code of Ethics"). Inter alia, the Code of Ethics sets standards for ethical conduct for all employees. A recurring theme within this Code is that employees should "protect PNC‟s property, and use it for legitimate business purposes, but not for improper personal gain or benefit." Doc. No. 28-1, Dep. Exs. 14 and 15; see also, Depo. Tr. of Plaintiff, Tr. p. 59 - 60. In terms of the standards involving the handling of corporate assets, the Code of Ethics covered two broad categories: 1) corporate property and inventions, and 2) electronic media. Doc. No. 28-1, Dep. Ex. 17, at "Use of PNC Assets". Corporate property and assets is defined as "PNC‟s physical facilities, office supplies, furnishings, automobiles and aircraft, products, services, technologies, processes, files, documents, U.S. mail delivered to a PNC address, inventions by PNC employees, etc." Id. Electronic media is defined as "telephones, e-mails, fax machines, personal computers, cell phones, voice mail and pagers, instant messaging, text messaging, etc." Id. Furthermore, the policy with respect to the use of electronic media is as follows:

The Electronic Media Policy applies to the use of all Electronic Media when:

 Accessing on or from PNC premises;  Using PNC‟s leased or purchased services (e.g., PNC‟s corporate network or Internet/Intranet connection);  Using PNC‟s leased or owned equipment (e.g., laptops, hand-held devices, or cell phones); or  Using your own or a third party‟s Electronic Media to conduct PNC-related business or in a manner that identifies PNC,

General Rules for Appropriate Use of Electronic Media

The company provides Electronic Media resources to facilitate company-related business. Unless otherwise restricted, occasional personal use of these resources is permitted. However, non-business use must be kept to a minimum, must be governed by good judgment and may not disrupt business operations or interfere with the performance or your job responsibilities. Your business unit may have additional procedures limiting the use of Electronic Media.

Doc. No. 28-1, Depo. Ex. 14 at § 3.04.

When she was hired, Plaintiff acknowledged in writing that she had received and read the Code of Ethics, and that she would comply with the standards. Doc. No. 28-1 at Dep. Ex. 5. Furthermore, on at least three occasions during her employment with Defendant, Plaintiff participated in online refresher training regarding the PNC Code of Ethics. Doc. No. 28-1, Depo. Tr. of Plaintiff at Tr. p. 16. Plaintiff was aware during her employment that a failure to abide by PNC‟s Code of Ethics could lead to her discharge. Doc. No. 28-1; Depo. Tr. of Plaintiff at Tr. p. 60.

3. Investigation into unauthorized use of UPS postage machine

In June 2009, a package that had been sent through the Channel Service‟s UPS machine was returned as undeliverable. Doc. No. 28-1, Decl. of Mark Ray at ¶1. The package was originally sent by Financial Services Consultant Lynn Coppola, and was a personal package unrelated to official PNC business. Id. at ¶ 2. Coppola was questioned about the package by Lead Financial Services Consultant Mark Ray, who was concerned that the UPS machine had been misused to send a personal package. Id. at ¶ 3. In the course of that discussion, Coppola informed Ray that Plaintiff had also used the PNC Channel Service‟s UPS machine to send a personal package, and further that Plaintiff had informed her that such use was permissible. Id. On June 26, 2009, Ray reported the incident to the Employee Information Resources Center ("ERIC") that Coppola had committed potential policy violations, specifically misusing PNC property. Id.

Janice Law is employed by Defendant as a Senior Employee Relations Investigator, and investigated the possible misuse of the UPS machine that was reported by Ray. Doc. No. 28-1, Decl. of Janice Law at ¶ 5. As part of her investigation, Law interviewed Ray, Lynn Coppola, Plaintiff and other employees in Defendant‟s National Finance Service Center‟s Channel Services Department. Id. On June 29, 2009, during her interview with Jan Law, Coppola admitted that she sent a package through the department‟s UPS machine, but expressed her intention that she was planning to reimburse PNC for the cost of the shipping. Id. at ¶ 6. At the conclusion of the interview, Coppola returned to her regular work station. Id. at ¶ 10. By July 9, 2009, Law had concluded that Coppola never intended to reimburse PNC for the cost of sending her personal package, and she placed Coppola on administrative leave with pay pending the outcome of the investigation. Doc. No. 28-1, Decl. of Law at ¶ 10.

Law interviewed Plaintiff on two occasions, once on June 29, 2009 (the same day she interviewed Coppola), and again on July 3, 2009. Plaintiff admitted to Law that in October 2008, she sent a personal package to her brother, who was living in Houston, TX, using the UPS machine, and that she billed her Department‟s cost center for the expense. Id. at ¶ 7; see also Doc. No. 13, Amended Complaint at ¶ 1; Doc. No 28-1, Depo. Tr. of Plaintiff at Tr. p. 23. Plaintiff explained at the time that she did not have to reimburse PNC for the cost of sending the package based on her belief that during the ethics refresher training, employees were advised that they were not required to pay for personal use of the company‟s fax machine, printer or copier, as long as there was no conflict of interest. Doc. No. 28-1, Depo. Tr. of Plaintiff at Tr. pp. 24 --

25. At the end of the interview on June 29, 2009, Law placed Plaintiff on administrative leave based upon Plaintiff‟s "complete misunderstanding" of PNC‟s policies, including her failure to recognize the clear distinction between acceptable limited, personal use of PNC equipment and electronic media, and knowingly charging a personal shipping expense to the company. Doc. No. 28-1, Decl. of Law. On July 9, 2009 (the same day she placed Coppola on administrative leave with pay), Law shared the results of her investigative findings with Channel Services Manager Elizabeth Kelly, who recommended ...


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